Saturday, November 8, 2014

Discussion on Neuroscience and the Law

The legal world has always
been concerned with the way that society functions along a certain set of socially
acceptable concepts, precepts, and rules that have been handed down over the
generations and agreed upon by the majority (for the most part) of the
public.They have made the decisions on
what to do with those individuals that do not follow the agreed upon moral code
of conduct in society with the basic understanding that everyone has a certain
level of moral understanding and culpability.The advent in the recent years of the field of neuroscience is set to
change some of the legal world’s views and preconceptions.This essay will discuss ways that
neuroscience both will and will not affect the legal world and what possible
ramifications that might entail.Moral
culpability, common sense, causality, and legal cases will be looked at for
support in showing that neuroscience does, in fact, affect the law.

Neuroscience is changing and
upgrading the way that the brain is understood to work, and in the process,
also re-examining the ways that crime and the appropriate punishments are
viewed.There are some of the
neuroscientists that are calling for the current judicial system in place to be
reworked and reconceptualised their discoveries in the neuroscience field taken
into account.[1]This is because of a few different factors,
such as the current legal conception of how the mind works not being accurate,
common sense not being as applicable as it once was, and the degree to which a
person is able to be held morally culpable of wrongdoing by the socially upheld
system of rules and laws.These can be
examined through the aspect of causality for further clarification on how they
impact the legal system as it stands.

Many advancements have been
made in regards to understanding how causality is judged by people in different
circumstances.Fugelsang and Dunbar
review the contemporary psychological models of causal thinking as directly
relevant to legal reasoning in their article from 2004.[2]It further covers new techniques that have
helped to uncover some of the underlying neural signatures of complex causal
reasoning.Based on the data covered,
Fugelsang and Dunbar propose ideas for the effectiveness of causal reasoning,
as it pertains to legal decision-making.They go on to explain how the ability to infer causality is not only
crucial for human reasoning in general, but also for the application of the law
more specifically.

The legal system, by its
nature, asks lawyers, judges, and jurors to reason out and make a judgement on
a person’s actions in relation to how they contributed or resulted in specific
outcomes.This reasoning must be done in
an unbiased manner, and is reliant upon the evidence being presented in a like
fashion, so that the judgment can be reached in regards to the culpability of
the defendant as causally responsible for the outcome in question.[3]This is important in that unbiased legal
application is paramount for maintaining consistency among rulings across
jurisdictions, and in the fact that a person’s ability to make judgments of
this nature is inseparably connected to the ability to attribute causality from
evidence.Without unbiased material for
evidence or question, then a person’s own beliefs and conceptions will cloud
the issue.

However, there are those in
the field of neuroscience that believe that causation is not an excuse or
reason for changing the way the legal system works.One such proponent is Morse, who maintains
that causation is not an excuse, but that lack of capacity (mental/moral) can
be.[4]This brings out another way of looking at the
neuroscience field in relation to the law.Rather than approaching the issue of neuroscience and the law from the
angle that neuroscience will result in a change of the law because of new
information that the legal system cannot handle, there is the approach, or
belief, that the legal system CAN handle whatever neuroscience throws at it,
and that the law will change through a transformative-type effect.[5]This means that the current legal system is
adaptable enough to be able flex and accommodate the new line of thinking that neuroscience
will bring into it in relation to how people function and make decisions, but
that it will naturally undergo a shift in the way that it handles criminals due
to the new concepts and understanding in how the brain works.This is also referred to as people’s moral
intuition regarding free will and responsibility.This is believed by Greene and Cohen to come
about by an appreciation of older arguments relating to punishment through
retribution versus a consequentialist approach in criminal law, via the new
illustrations provided by cognitive neuroscience.[6]

It is at this point that the
old saying, ‘what was he thinking?’ begins to take on a new meaning or point of
view.According to the law, a person is
successfully convicted by being shown to have engaged in the act in question as
well as having mens rea, or a guilty mind.This refers to the intention to commit a
criminal act, but the term has a looser interpretation by which it refers to
all mental states consistent with moral / legal blame.I.e., a murder by someone who is insane meets
the first requirement but not the second.[7]Now, common sense would consider that a
person is responsible for whatever action it is that they have taken that is
contrary to the socially and morally accepted norms, provided that the action
was a product of their own purposeful choice.Mens rea separates the action
and choice of making the action, meaning that a person will not be found guilty
if their mind is unable to be found guilty as well.[8]This view is going to change with
neuroscience in that neuroscience has shown that most of what goes on inside
the brain resulting in certain behaviours does so without any conscious
deliberation.As Greene and Cohen said,
‘Cognitive neuroscience, by identifying the specific mechanisms responsible for
behaviour, will vividly illustrate what until now could only be appreciated
through esoteric theorizing: that there is something fishy about our ordinary
conceptions of human action and responsibility, and that, as a result, the
legal principles we’ve devised to reflect these conceptions may be flawed.’[9]

There is quite a lot of
merit to the idea that neuroscience will be able to help rethink the legal
system and make allowances for the different ways that people think, and for
different levels of culpability through ignorance, however this idea is a
two-edged sword.The relationship
between common sense and the law and the new ideas of neuroscience may not be as
simple and clear cut as this one is right and the other one is wrong.The law just needs to be able to show the
difference between someone doing something on purpose whilst being fully aware
of the action and the ramifications of it, and someone performing the same act
out of ignorance, lack of understanding, or a diminished ability through some
type of brain malfunction.[10]Klaming and Koops found that research in the
area of neuroscience of normative judgement and decision-making has
demonstrated that legal judgements involve other brain areas as compared to
moral judgements; namely areas associated with reflecting explicit rules.Also, one of the most fundamental legal
applications of neuroscience refers to the possibility of determining criminal or
civil responsibility, i.e. the degree to which a person can be held legally
accountable for their actions.[11]This would have a profound effect on those who
would use pleas that are dependent upon the solidity and reliability of their
mental faculties functioning fully, such as the insanity plea.The insanity plea requires that a person is
shown as ‘lacking a general capacity for rationality’ or that they laboured
under ‘a defect of reason, from disease of the mind’.Thus, the new science can help figure out who
was or was not rational at the scene of the crime, much as it has in the past,
but new science will not justify any fundamental change in the law’s approach
to responsibility unless it shows that people in general fail to meet the law’s
very minimal requirements for rationality.Neuroscience is especially unlikely to undermine our faith in general
minimal rationality.[12]

During the course PHI310
Philosophy and Cognative Science, there was an example case study given
regarding extraneous neurological conditions causing actions rather than the person’s
own decisions.The example given was
that of a school teacher who suddenly without prior indication develops an
interest in child pornography and then makes advances on a daughter.This person was sent to sex-offenders
treatment, continued to proposition people inappropriately in court, and
eventually wound up in the Emergency Room of a hospital with a bad headache and
other neurological symptoms.After some
tests and scans were done, there was found a cyst on the brain that was causing
pressure and needed to be removed.Within a few weeks of the cyst being removed, all the paedophilia and
altered sex-drive symptoms also disappeared.[13]This is interesting and important because the
person was guilty of the actions, and did take the actions, but through
neuroscience it was found and determined that it was not the teachers fault,
but the cysts.With the evidence that
was available sans the neuroscience input, this teacher would have been found
guilty in a court of being a sex-offender and treated as such.With the inclusion of the neuroscience
information, however, the guilt is removed as mens rea would not apply, because there was a medical condition
that affected the brain and caused the actions.

There are more examples of
neuroscience being allowed into the legal system and having an effect on the
decisions and outcomes as well.In Roper v. Simmins (2005), neuroimaging
evidence was presented to the US Supreme Court to show that regions of the
brain responsible for decision making and impulse control are not as well
developed in adolescents as in adults; this was presented in order to argue
that adolescents are less morally culpable for the crimes they commit than
adults.Although not entirely based on neuroimaging
evidence, the Supreme Court in that case banned the death penalty for minors
under the age of 18.[14]Another example can be found in the case of
Brian Dugan.Klaming and Koops refered
to the legal case of Brian Dugan, who was charged with the murder of a
10-year-old girl.The expert witness
argued that Dugan suffered from a malfunctioning limbic system which caused him
to be a psychopath, and this information was a mitigating factor in his
sentencing phase.[15]

These findings and
precedents are important as far as the implications regarding neuroscience and
the law are concerned due to legal reasoning.The human brain seems to be specifically sensitive to the degree that
evidence is consistent, as far as statistical information is concerned at
least, with the expectations of the people involved.Fugelsang and Dunbar found that people do not
evaluate evidence in an atheoretical manner, but rather they use their beliefs
and expectations to guide their assessment of the evidence given to them.This interplay between one’s beliefs and
evidence has a distinct neural signature, in that evidence that is consistent
with one’s beliefs is more likely to recruit neural tissue involved in learning
and memory, whereas evidence that is inconsistent with one’s beliefs is more
likely to invoke neural tissue associated with error detection and conflict
monitoring.[16]

The
reason that the law is immune to such threats as that there is nothing on the
neuroscientific horizon that it can’t handle, is that it makes no assumptions
that neuroscience or any other science, is likely to challenge.The law assumes that people have a general
capacity for rational choice, but also acknowledges that our capacity for
rational choice is far from perfect, requiring only that the people it deems
legally responsible have a general
capacity for rational behaviour.[17]The question arises then, why, if the law
assumes nothing more than general minimal rationality, and neuroscience does
nothing to undermine this assumption, then why would anyone even think that
neuroscience poses some sort of threat to legal doctrines of criminal
responsibility?This is the error that
is referred to as ‘the fundamental psycholegal error’ which is ‘to believe that
causation, especially abnormal causation, is per se an excusing condition’.In other words, according to Greene and Cohen, if you think that
neuroscientific information about the causes of human action can make for
legitimate legal excuse, you don’t understand the law.[18]

How
can Greene and Cohen, who are proponents of and arguing that neuroscience will change
the law say that?It is because they
agree that the law as written is not affected by neuroscience.They maintain, however, that the law stands
on shaky ground because it depends on adequately reflecting the moral
intuitions and commitments of society.If neuroscience can change those intuitions, then neuroscience can
change the law.[19]In fact, it would appear that this new
science may prove to be most useful legally in showing how certain people make
their moral judgements and decisions, as moral behaviour impairment has been
consistently linked to antisocial behaviour.[20]Thus this is the manner that neuroscience is
most likely going to effect the law; by subtly changing the moral intuition of
the people and those that enact and interpret the law rather than by outright
confronting it.

Moral
culpability, common sense, causality, and legal cases that have been referred
to and looked at throughout this essay have shown that the field of cognitive
neuroscience does, in fact, affect the law in many ways.It is through the understanding of what is
considered ‘right’ and ‘wrong’, ‘just’ and ‘unjust’, and acceptable to society
as a whole that legal decisions are made.Will the entire judicial system that is currently in place have to be
thrown out the window and started over because of neuroscience?No.Will the way that criminals are prosecuted and punished need to be
changed?To some degree, yes.As there is more and more information about
what the cause of unwanted actions are, be it the decision of the criminal in
question or a malfunction of sorts in the brain, there will naturally come an
adjustment in the way that the legal system works, functions, and regards the people
that it serves.At the end of the day,
neuroscience and the law deal with morality as defined by society, and
“morality… is so ubiquitous that we may not notice it as a fundamental
component of daily decision making and in the workings of many legal,
political, and social systems.”[21]

Greene, J. and Cohen, J.(2004).‘For the Law,
Neuroscience Changes Nothing and Everything’.Department of Psychology, Princeton University, in press at Philosophical Transactions of The Royal
Society of London, Biological Sciences.